At issue is the validity of a substituted judgment order dated 1984 authorizing forcible administration of antipsychotic drugs, issued pursuant to G.L.c. 201, § 6 (1988 ed.). The parties agree that the substituted judgment order terminated during the course of these proceedings
The substituted judgment order in question originated soon after Edward Weedon voluntarily admitted himself to McLean Hospital (McLean) in July, 1984, suffering from an exacerbation of his previously existing bipolar disease (manic depression). Weedon had been hospitalized and released on
In September, 1984, Weedon reentered McLean. His family petitioned the Probate Court to appoint a permanent guardian with authority to approve forcible medication. The court appointed Weedon's sister as guardian. See G.L.c. 201, § 6 (1988 ed.). After an evidentiary hearing, the judge made findings of fact and incorporated a substituted judgment treatment plan prepared by a physician at McLean. The plan included the forcible administration of antipsychotic drugs which Weedon refused to take. The judge determined that Weedon would have decided to take the drugs if he had been competent. Although the judge indicated in his findings of fact that he anticipated that the treatment plan would produce a remission of the illness within approximately four to six weeks, the judge did not include in his findings either a termination date or provisions for periodic review.
In December, 1984, Weedon was discharged from McLean. Weedon lived at his parents' home and maintained various part-time jobs until October, 1985, when he was admitted to Metropolitan State Hospital (Metropolitan). In March, 1986, Weedon was discharged from Metropolitan. For approximately two years following this discharge, Weedon lived on his own and worked full time, managing to save $10,000 out of his earnings. At the end of 1987, Weedon suffered a relapse, and again sought voluntary hospitalization. He was released after a short hospitalization. In April, 1988, he was admitted to Arbor Hospital (Arbor), and then transferred to Metropolitan. On November 8, 1989, physicians at Metropolitan began treating Weedon with antipsychotic
Weedon then petitioned the Probate Court to terminate his sister's guardianship over him. After an evidentiary hearing in April, 1990, the judge found Weedon was competent to manage his affairs and discharged the guardian.
A person has the right to refuse to submit to invasive and potentially harmful medical treatment such as the administration of antipsychotic drugs. Guardianship of Roe, 383 Mass. 415, 433 (1981). This right extends to incompetent as well as competent persons "because the value of human dignity extends to both." Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 499-500 (1983), quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 745-746 (1977). Before a patient's decision to refuse such treatment can be overridden, a judge must determine first that the patient is incompetent to make this decision, and then what the patient would choose if he were competent, using a substituted judgment standard. Rogers, supra at 498, 500-501. In making a substituted judgment determination,
There is no doubt that the substituted judgment treatment order in question did not survive the Probate Court's determination in April, 1990, that Weedon was competent. This follows necessarily from our holding that "a distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients' rights to make their own treatment decisions." Rogers, supra at 498. Because a judicial finding of incompetence is a necessary precondition to any substituted judgment treatment order, a subsequent finding of competence automatically terminates any substituted judgment order then in effect.
Substituted judgment treatment orders issued pursuant to G.L.c. 201, § 6, cannot remain effective indefinitely. A substituted judgment order is valid because it is based on the demands of a patient's current circumstances. Thus, we have disapproved of treatment orders based on conjecture as to
Periodic review, alone, however, may not suffice in all cases adequately to protect patients' rights. We conclude that, because "(1) there are `few legitimate medical procedures which are more intrusive than the forcible injection of antipsychotic medication,' [Roe, supra] at 436; [and] (2) the side effects of antipsychotic drugs `are frequently devastating and often irreversible,' [Roe, supra] at 438," Rogers, supra at 501 n. 16, a termination date also must be included in a substituted judgment plan. That date, of course, may be changed depending on the results of the periodic review. We note that this requirement of a termination date lessens the disparity in treatment between patients subject to an order under G.L.c. 201, § 6, which currently has no provision for periodic review and termination, and those subject to an order
Weedon and amici curiae urge us to mandate timetables and procedures for periodic review and termination. We decline to do so. We think that appropriate decisions on these matters can only be made on the basis of information from a variety of sources. Because it is essential that the Probate Court maintain its flexibility and its consequent ability to respond to the individual needs of patients, we think it may be appropriate for the time periods for review and termination to be addressed by the Probate Court through its rules. Public comment should be invited from mental health experts, lawyers, patients, and their families before timetables for periodic review and termination dates are formulated. We add that any rule which is adopted must be flexible and permit a guardian to seek review or termination sooner than the rules provide if the patient's circumstances warrant earlier action.
We remand this case to the Probate and Family Court to correct the docket by reflecting the allowance of Weedon's motion to terminate the substituted judgment plan order.